Cohen v. State
| Decision Date | 03 February 1938 |
| Docket Number | No. 16.,16. |
| Citation | 196 A. 819 |
| Parties | COHEN v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; Eugene O'Dunne, Judge.
On appellant's motion for reargument.
Motion overruled.
For original opinion, see 195 A. 532.
Argued before BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.
Isaac Lobe Straus and Harry O. Levin, both of Baltimore, for appellant. Hilary W. Gans, Deputy Atty. Gen., and Philemon B. Coulter, Asst. State's Atty., of Baltimore (Herbert R. O'Conor, Atty. Gen., on the brief), for the State.
The appellant, Harry Cohen, has filed a motion for reargument, the main reason for which is on a question which was not raised at the trial of the case or in his brief or at the argument on appeal, and that is that because of the sentence to confinement in the penitentiary he was entitled in the selection of a jury to twenty peremptory challenges. We held that he was entitled to a list of twenty qualified jurors, from which he and the state were each entitled to strike four, the case being a common-law misdemeanor, and that the result of the court's questioning was to furnish a qualified list.
This court could not, even if the question had been raised on appeal, have considered the contention for twenty peremptory challenges, as we cannot consider on appeal questions not "tried and decided by the court below." Code, art. 5, § 10.
In his motion for reargument the appellant begins by saying: "A re-argument of the cause should be granted to correct and clarify certain error and confusion in the law disclosed in the opinion in this appeal."
Article 51, section 19, of the Annotated Code of Maryland 1924, Act of 1912, c. 846 provides: "The right of peremptory challenge shall be allowed to any person who shall be tried on presentment or indictment for any crime or misdemeanor, the punishment whereof by law is death or confinement in the penitentiary, and to the State on the trial of such indictment or presentment; but the accused shall not challenge more than twenty nor the State more than ten jurors, without assigning cause."
There is no need to discuss this statute nor the numerous authorities so liberally cited and quoted by the appellant, as the answer to it, which was not noted in the motion or argument therein by the appellant, and evidently overlooked by him, is contained in section 700, article 27 of the Code, Act of 1918, c. 196, § 654, the applicable parts of which...
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Beard v. State, 5
...matter set out in another count (Philadelphia, W. & B. R. Co. v. State, 20 Md. 157, 163; Cohen v. State, 173 Md. 216, 220, 195 A. 532, 196 A. 819; Imbraguglia v. State, supra); but there is here no incorporation by reference in one count of matter set forth in Watson v. People, 134 Ill. 374......
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Lusby v. State, 265
...answer of the prosecutrix, fully satisfied the right of the defendant to a fair trial. See Cohen v. State, 1937, 173 Md. 216, 195 A. 532, 196 A. 819. There remains the inquiry whether the conduct of the State's Attorney was so prejudicial as to deprive the defendant of a fair trial. Obvious......
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Kelly v. Schoonfield
...F. 2d 533 (2 Cir. 1965), cert. denied, 382 U.S. 911, 86 S.Ct. 254, 15 L.Ed.2d 163 (1965); Cohen v. State, 173 Md. 216, 232, 195 A. 532, 196 A. 819 (1937). The cases of Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), and Driver v. Hinnant, 356 F.2d 761 (4 ......
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State v. Russell, 48
...reference as 'well-established.' See, Imbraguglia v. State, 184 Md. 174, 40 A.2d 329 (1944); Cohen v. State, 173 Md. 216, 195 A. 532, 196 A. 819 (1937). In the Federal courts incorporation by reference is recognized by statute. Rule 7 of the Federal Rules of Criminal Procedure entitled 'The......